|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of New Zealand Decisions |
Last Updated: 21 December 2018
|
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA
ROHE
|
|
CIV-2018-488-89
[2018] NZHC 3218 |
|
UNDER
|
section 124 of the District Court Act 2016 and section 34 of the Harassment
Act 1997
|
|
IN THE MATTER
|
of an appeal against the judgment of Judge DJ McDonald in case
CIV-2015-088- 540/[2018] NZDC 12863 given in the District Court at
Whangarei on
3 July 2018 refusing a cross-application under the Harassment Act 1997
|
|
BETWEEN
|
JANETTE ANN AJANI
Appellant
|
|
AND
|
LIEF THOMAES
Respondent
|
|
Hearing:
|
21 November 2018
|
|
Appearances:
|
A P Holgate for Appellant
Respondent in person (together with McKenzie Friend, Mr Harold Van
Blommestein)
|
|
Judgment:
|
7 December 2018
|
JUDGMENT OF BREWER J
This judgment was delivered by me on 7 December 2018 at 2:30 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors:
The Conveyancing Shop Lawyers Ltd (Pukekohe) for Appellant
AJANI v THOMAES [2018] NZHC 3218 [7 December 2018]
Introduction
[1] Ms Thomaes and Ms Ajani are neighbours who share a right-of-way. They are at feud with each other. There is a lengthy history of conflict between them, which has involved others also, and the Courts have been involved in the past to resolve disputes concerning them. I do not need to go into detail, it is summarised by Judge DJ McDonald in the Judgment which Ms Ajani now appeals.1
[2] The Harassment Act 1997 (“the Act”) has as its object the provision of greater protection to victims of harassment by:2
(a) recognising that behaviour that may appear innocent or trivial when viewed in isolation may amount to harassment when viewed in context; and
(b) ensuring that there is adequate legal protection for all victims of harassment.
[3] One way the Act provides for adequate legal protection for victims of harassment is by empowering the Courts to grant restraining orders against proven harassers to protect the harassed.3 On 9 March 2016, Ms Thomaes obtained such a restraining order against Ms Ajani. It expired after 18 months, but Ms Thomaes applied to extend it. On 29 August 2017, Ms Ajani, in response, applied to discharge Ms Thomaes’s restraining order and she also applied for a restraining order against Ms Thomaes. These are the applications that came before Judge McDonald.
[4] Partway through the hearing, Ms Ajani made a significant concession. She withdrew her application to discharge Ms Thomaes’s restraining order. By consent, Judge McDonald extended the term of Ms Thomaes’s restraining order to 22 September 2019.
[5] That left Ms Ajani’s application, opposed by Ms Thomaes, for a restraining order against Ms Thomaes.
1 Thomaes v Ajani [2018] NZDC 12863.
2 Harassment Act 1997, s 6(1).
3 Section 16.
[6] Judge McDonald considered four alleged acts which Ms Ajani submitted, taken together, satisfied the Act’s definition of what constitutes harassment. The Judge found two of the alleged acts proven and that they constituted harassment. However, that was not the end of the matter. Section 16(1) of the Act states the Court may make a restraining order if it is satisfied that harassment has occurred; and:
...
(b) the following requirements are met:
(i) the behaviour in respect of which the application is made causes the applicant distress or threatens to cause the applicant distress; and
(ii) that behaviour would cause distress, or would threaten to cause distress, to a reasonable person in the applicant’s particular circumstances; and
(iii) in all the circumstances, the degree of distress caused or threatened by that behaviour justifies the making of an order; and
(c) the making of an order is necessary to protect the applicant from further harassment.
[7] Judge McDonald was not satisfied that Ms Thomaes’s acts would cause distress to a reasonable person in Ms Ajani’s particular circumstances. Nor was he satisfied the making of the order is necessary to protect Ms Ajani from further harassment:
[66] The power to make a restraining order is contained in s 16. I have found that the respondent, Ms Thomaes, has harassed Ms Ajani. That however is not the end of the matter. I must also consider s 16(1)(b). Ms Ajani was distressed in relation to both incidents. I do not consider that the behaviour would cause distress to a reasonable person in the applicant’s particular circumstances. On both occasions Ms Ajani has provoked the reaction from Ms Thomaes. While Ms Ajani was lawfully allowed to do what she did on both occasions she knew that her behaviour would cause the reaction she got from Ms Thomaes. Ms Ajani has in effect built a strawman knowing that Ms Thomaes would come and knock it down. Ms Ajani then could complain.
[67] I must also have regard s 16(1)(c) which requires me to be satisfied that the making of an order is necessary to protect Ms Ajani from further harassment. I do not consider that the making of an order is necessary to protect her from further harassment. Ms Ajani just has to act in a way that a good neighbour would. All these two people need to do, if they cannot act civilly towards each other, is to stay away from each other.
[8] The Judge declined to grant Ms Ajani a restraining order against Ms Thomaes.
The Appeal
[9] The Notice of Appeal boils down to a ground that, given the nature of the proven acts constituting harassment (one of which involved physical contact), as well as evidence from Ms Thomaes that she wanted the freedom to approach Ms Ajani in future, the Judge erred in refusing to grant Ms Ajani a restraining order.
[10] There is, in the Notice of Appeal, an indication of a further ground of appeal to the effect the Judge was wrong to find that another of the four alleged acts was not a specified act for the purpose of determining whether Ms Thomaes harassed Ms Ajani. However, as Mr Holgate for Ms Ajani accepted, this is not material to the appeal. Judge McDonald found that Ms Thomaes harassed Ms Ajani. From that point, all the proven interactions between them are relevant for the purpose of deciding whether a restraining order shall be made.4
[11] The appeal proceeds by way of rehearing.5 I must look at the evidence before Judge McDonald and form my own view.6 In doing so I must bear in mind the advantage the Judge had in hearing from the witnesses in person. At the end of my evaluation, if my opinion is that the Judge erred, then I must give effect to my view. It is for Ms Ajani to satisfy me that the Judge erred.
The alleged specified acts
[12] In my view, the overall history of conflict between Ms Thomaes and Ms Ajani shows neither in a good light. Each, however, is convinced she has done no wrong and that the other is the transgressor. Ms Thomaes represented herself before me. Her submissions, oral and written, show no insight into her own behaviour.
4 See, for example, Clarke v Watts [2014] NZHC 822.
5 Section 34 of the Act and s 127 of the District Courts 2016.
[13] Against this background, I will summarise the specified acts which formed the basis of Ms Ajani’s application for a restraining order. They give the specific context for Judge McDonald’s decision. But first, some law.
[14] Specified acts are defined in s 4:
4 Meaning of specified act
(1) For the purposes of this Act, a specified act, in relation to a person, means any of the following acts:
(a) watching, loitering near, or preventing or hindering access to or from, that person’s place of residence, business, employment, or any other place that the person frequents for any purpose:
(b) following, stopping, or accosting that person:
(c) entering, or interfering with, property in that person’s possession:
(d) making contact with that person (whether by telephone, correspondence, electronic communication, or in any other way):
(e) giving offensive material to that person or leaving it where it will be found by, given to, or brought to the attention of that person:
(ea) giving offensive material to a person by placing the material in any electronic media where it is likely that it will be seen by, or brought to the attention of, that person:
(f) acting in any other way—
(i) that causes that person (person A) to fear for his or her safety; and
(ii) that would cause a reasonable person in person A’s particular circumstances to fear for his or her safety.
[15] One person harasses another if he or she engages in a pattern of behaviour directed against that other person, being a pattern of behaviour that includes doing any specified act on at least two separate occasions within a period of 12 months.7 The specified acts may be of different types or the same.8 Moreover, they need not be done to the same person so long as the pattern of behaviour is directed at the same person.9
7 Section 3(1).
8 Section 3(2)(a).
9 Section 3(2)(b).
[16] As is evident, the definition of a specified act is a broad one. Some of the conduct could in many circumstances be entirely inoffensive. I respectfully agree with Ellis J in Mooney v Wilkinson where her Honour related specified acts to their effect:10
[26] ... In short, what is potentially restrained by the Act is (repeated) conduct of a kind that causes the person at whom it is directed to fear reasonably for his or her safety.
The first act
[17] The first alleged specified act occurred on 20 December 2016 and involved an altercation between Ms Ajani and a man who was part of the history of discord between people in the area of Ms Thomaes’s and Ms Ajani’s homes. Ms Ajani alleges the man assaulted her. Ms Ajani wanted to seek medical help but could not use the right-of-way she shares with Ms Thomaes because it was blocked. She says she asked Ms Thomaes to let her use an alternative accessway but that Ms Thomaes refused. Ms Thomaes had locked a gate to it and parked her car across it. Ms Thomaes also refused to let Ms Claris, a friend of Ms Ajani, who came to help her, drive up to Ms Ajani’s house. The Judge found:
[41] There is no legal obligation on Ms Thomaes to assist Ms Ajani even if she knew she had been injured. She might have had a moral obligation but no legal obligation. Ms Thomaes genuinely believed, and I find that Ms Ajani knew that, that Ms Ajani did not have the right to pass over the alternative accessway. Even if Ms Claris is correct, Ms Thomaes was not hindering or preventing access by Ms Claris to Ms Ajani. She was only making it more difficult in that Miss Claris wanted to drive. I accept Ms Claris had a disability which made walking somewhat difficult.
The second act
[18] The second alleged specified act occurred on 16 April 2017. Ms Ajani allowed friends visiting her to park their car on the grass verge of the right-of-way outside Ms Thomaes’s house. After the friends left, Ms Thomaes fenced off the place where the car had been parked with plastic electric fence standards and plastic tape. Ms Ajani said she felt harassed by this and took down a few of the standards. Ms Thomaes said she put the standards there to protect the grass. The Judge found:
10 Mooney v Wilkinson [2015] NZHC 2488.
[50] I find Ms Thomaes placed the electric fence line knowing Ms Ajani would see it and react, which she did by taking some or all of it down. It was yet another example of the “tit-for-tat” actions between two people who, with respect, should know better. Ms Ajani could have got her friends to park their car somewhere else well away from Ms Thomaes’ area. She did not. Ms Thomaes then reacted predictably. I find this was a specified act in that it did interfere with Ms Ajani’s property but only marginally so.
The third act
[19] The third alleged specified act occurred on 18 April 2017. Ms Ajani started spraying weeds on her property, walking on the right-of-way for that purpose. She was opposite Ms Thomaes’s property and near one of Ms Thomaes’s sleepouts which was occupied by friends of hers. Ms Ajani had a history of discord with the friends, and a history of disputes with Ms Thomaes over using sprays. Ms Thomaes considers sprays to be highly toxic and dangerous to health.
[20] As the Judge said, predictably Ms Thomaes and the friends confronted Ms Ajani. Cameras were operating. The Judge said: “Everybody seemed to be filming what was going on”.11 The Judge went on to describe what happened and to give his finding:
[56] I accept Ms Thomaes asked Ms Ajani to stop spraying as Ms Thomaes considered Ms Ajani was poisoning them. Ms Ajani did not. There was then a tussle over the spray pack, in particular the nozzle. There was pushing and pulling. Ms Thomaes complained she got an injury to her hand as result of that altercation. She considered Ms Ajani had bitten her. Ms Ajani said she did not. The tussle ended. Ms Ajani got in her vehicle and drove away.
[57] I find that Ms Ajani had the right to spray certified chemicals onto her land. Ms Thomaes had no power to prevent that, short of issuing proceedings in nuisance. There was no actual evidence of spray drift such as plants in Ms Thomaes’ area dying. It was some distance away from Ms Thomaes’ own house but I accept much closer to the sleepout that the Rivers occupied. The sleepout unlike Ms Thomaes’ own cottage had no fence to protect it from any spray drift.
[58] As night follows day Ms Thomaes I find came out when she learnt or smelt that Ms Ajani was spraying chemicals. I infer that Ms Ajani would have known that would be the result if Ms Thomaes was at home. Ms Ajani was not targeting, that is specifically, Ms Thomaes with the spray. But by her actions she knew that there would be in all probability a confrontation.
[59] Ms Thomaes did accost Ms Ajani; that is approach and speak to her boldly. When Ms Ajani would not stop she, Ms Thomaes, grabbed the nozzle.
11 At [55].
[60] I find that this was a specified act.
The fourth act
[21] The fourth alleged specified act occurred a number of times and was the spraying of water by Ms Thomaes on other occasions when Ms Ajani was spraying weeds on the right-of-way or on her own property. The Judge gave this description and finding:
[61] On a number of occasions when Ms Ajani was spraying weeds on the right-of-way or on her own property, apart from above, Ms Thomaes, it is alleged, squirted a garden hose in Ms Ajani's general direction. In Ms Ajani’s view it was an attempt to wet her. Ms Thomaes said on smelling the spray she came out with her hose and sprayed it in a general direction not in an attempt to wet Ms Ajani but to dampen down the chemical spray drift.
[62] As Ms Ajani said on at least one occasion she walked further away from where Ms Thomaes was with her hose and then walked back through a mist of water getting a little wet.
[63] The actions must be directed towards Ms Ajani by Ms Thomaes. I find that it was not. While it was in her general direction it was not specifically, or even in part, designed to wet Ms Ajani.
The law
[22] In Munro v Collection House (NZ) Ltd, Toogood J found it useful to apply s 16 of the Act in a five-stage inquiry:12
(a) First, to determine whether the respondent has harassed, or is harassing, the applicant;
(b) Second, to find whether the behaviour in respect of which the application is made causes the applicant distress, or threatens to do so;
(c) Third, to make the mixed objective/subjective assessment of whether that behaviour would cause, or threaten to cause, distress to a reasonable person in the applicant’s particular circumstances;
(e) Fifth, to decide whether the making of an order is necessary to protect the applicant from further harassment.
[23] In relation to the necessity limb, the cause of the problems between the parties will be particularly relevant;13 as will the nature of the relationship in issue.14 Similarly, rights and freedoms under the New Zealand Bill of Rights Act 1990 should be considered in steps four and five, particular the right to freedom of expression.15
[24] I have looked at the material before Judge McDonald in this way.
Decision
[25] I accept Judge McDonald’s finding that the specified acts he found proven would not cause distress to a reasonable person in Ms Ajani’s particular circumstances. I looked closely at whether this was a reasonable conclusion given that the third specified act, involving the tussle over the spraying, included physical contact. However, the particular circumstances included deliberate provocation on the part of Ms Ajani and knowledge by her of how Ms Thomaes was likely to react. Also, the Judge had the benefit of seeing Ms Ajani give her evidence.
[26] I accept also the Judge’s conclusion that the making of a restraining order is not necessary to protect Ms Ajani from further harassment. In my view, the Judge was right to conclude that if Ms Ajani does not provoke Ms Thomaes then Ms Thomaes will not bother her.
[27] There is an additional matter. Currently, the restraining order against Ms Ajani should create a barrier to Ms Ajani approaching Ms Thomaes. Ms Thomaes’s view, however, is that Ms Ajani has breached the restraining order on many occasions. I
13 Henderson v Wharton HC Whangarei CIV-2011-488-78, 29 September 2011 at [38].
14 Wallis v Rebolledo at [26].
15 Waxman v Crouch at [22] and Clarke v Watts at [25].
cannot determine that. I can, however, have regard to Judge McDonald’s view that, excluding the first alleged specified act, Ms Ajani acted provocatively. Ms Thomaes submitted to me that if Ms Ajani obtains a restraining order she will use it as a weapon in the feud. That is to say, Ms Ajani could characterise any interaction with Ms Thomaes, provoked or otherwise, as Mr Thomaes breaching Ms Ajani’s restraining order. I think that is a real possibility and a reason to leave things as they are.
[28] The appeal is dismissed.
Brewer J
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2018/3218.html